- (1.) Inspite of sufficient service no one has appeared on behalf of workman-Respondent No. 2 Dushyant Kumar.
(2.) Heard Shri S.P. Mishra, learned standing counsel for the State Petitioner. This writ petition is directed against award dated 24.3.1992 given by Presiding officer, Labour Court, U.P., Lucknow in adjudication case No. 202 of 1990. The matter which was referred to the Labour Court was as to whether the action of Petitioner-employer in terminating the services of its workman-Respondent No. 2 with effect from 1.1.1989 was just and valid or not. The workman asserted that he was working under Executive Engineer, Irrigation, Construction division-2, Phool bagh, Kanpur Petitioner No. 2. In the impugned award it is mentioned that the Petitioners who were opposite parties before the Labour Court did not file any written statement. It is further mentioned that Executive Engineer had authorised Shri Mohammad Hassan, a clerk to do pairvi however, the reply/written statement was filed by one, Ashok Kumar Khare, Assistant Engineer, II, Irrigation Construction, Khand-II, Kanpur.
(3.) The case of the workman was that he had worked without any break from 1.4.1985 to 31.12.1988 on the post of Tractor-driver. The employer-Petitioner contended that in no year Respondent No. 2 had worked for more than 240 days and he was muster-roll employee appointed as and when required. Petitioners were required to file log book of the tractor which they could not do. The statement on oath of the workman was accepted. The burden to prove the fact that he had worked for 240 days or more in a year lies upon the workman. In the instant case no serious effort was made by the workman to discharge this burden. Pay slips etc. were not filed. Labour Court wrongly placed the burden to disprove the said fact upon Petitioner employer. In view of Supreme Court authorities reported in "Range Forest Officers. v. S.T. Hadimani", 2002 AIR(SC) 1147 and Sita Ram and others v. Moti Lai Nehru Farmers Training Institute, 2008 AIR(SC) 1955 the burden lies upon the workman and affidavit or oral evidence of workman is not sufficient to prove this fact.;